The real lesson of the Nunes memo

5 February 2018

NormanL

Millions of pixels and untold numbers of trees perished in the partisan dust-up following the release of Rep. Devin Nunes' FISA memo. What all the point scoring misses -- tragically, but not surprisingly -- is how the memo demonstrates the lengths, and depths, the federal government will go to spy on American citizens.

For years, civil liberties advocates have argued that the secret FISA courts are a constitutional abberation. The Nunes memo makes that case once again. But the memo comes just a few weeks after Congress -- with bipartisan support -- voted to renew the secret courts' authority, and allow futures abuses to occur.

As Jim Antle writes in the Washington Examiner, the renewal, the hue and cry from the Nunes memo, and other incidents illustrate official Washington's maddening selective outrage on civil liberty:

What is beyond dispute is that some of the lawmakers most exercised about the surveillance of Carter Page seem awfully comfortable with government surveillance powers more broadly.

It’s a point libertarian-leaning Republicans in the House made repeatedly on Friday.

“While I applaud the release of this memo, I also call for Congress to take immediate action to help prevent such behavior in the future,” Sen. Rand Paul, R-Ky., said in a statement. “It is imperative it start by listening to Americans who have expressed outrage over its disregard for the Fourth Amendment and reexamining the powers it reauthorized right before we learned of the memo. Continuing to ignore the Constitution will only guarantee that others fall victim to government abusing its domestic surveillance powers.”

Rep. Justin Amash, R-Mich., asked why there was a big push to reauthorize FISA Section 702 if they were so sure abuses were occurring.

Amash dinged his own party’s leaders, but pointed out the reauthorization effort was bipartisan. House Minority Leader Nancy Pelosi, D-Calif., and House Intelligence Committee Ranking Member Adam Schiff, D-Calif., both outraged that the memo was released, were on the same side of the FISA debate as House Speaker Paul Ryan, R-Wis., and House Intelligence Committee Chairman Devin Nunes, R-Calif.

(Nunes memorably called Amash “al Qaeda’s best friend in Congress” during a previous NSA surveillance debate.)

I'm glad that the Republican memo has been released. It makes many conclusory assertions, some of which are serious -- Justin Amash (@justinamash) February 2, 2018

“My question: who made the decision to withhold evidence of FISA abuse until after Congress voted to renew FISA program?” Rep. Thomas Massie, R-Ky., asked on Twitter.

Situational libertarianism has been the norm in Washington for years. Politicians are most likely to complain about prosecutors and federal agents run amuck when a member of their own party, especially the president, is the target.

Getting upset or outraged when a partisan ox is gored is, indeed, how Washington plays the game. It is as tiresome as it is pointless. The political class -- which includes both major parties -- decided to continue allowing a secret court to approve often flimsy warrants based on dubious evidence. Those who say they are defenders of the Constitution should have stood against it. Few did.

The result is more spying, approved and administered in secret. That is the real lesson, the genuine bombshell, of the Nunes memo. It wasn't the intended lesson, and partisans, their blinders firmly bolted inplace, will refuse to see it. What's needed are more actual defenders of our constitutional rights to bring this entire offensive apparatus to a halt. In the party-before-principle DC we are saddled with today, that's unlikely to happen...much to the detriment of our rights and liberties.